Citation Nr: 0016328
Decision Date: 06/20/00 Archive Date: 06/28/00
DOCKET NO. 99-06 159 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi
THE ISSUES
1. Entitlement to service connection for a disability
manifested by leg pain.
2. Entitlement to an evaluation in excess of 10 percent for
hypertension, on appeal from the initial grant of service
connection.
REPRESENTATION
Appellant represented by: Mississippi State Veterans
Affairs Commission
WITNESS AT HEARING ON APPEAL
The appellant
ATTORNEY FOR THE BOARD
Nancy R. Kegerreis
INTRODUCTION
The veteran served on active duty from September 1986 to
February 1991.
This matter comes before the Board of Veterans' Appeals
(Board) from a January 1999 rating decision by the Department
of Veterans Affairs (VA) Regional Office (RO) in Jackson,
Mississippi, which denied service connection for a disability
manifested by leg pain and granted service connection at an
evaluation of 10 percent for hypertension.
The Board has decided the issue of service connection for a
disability manifested by leg pain. The issue of an increased
evaluation for hypertension is the subject of the Remand
portion of this decision.
In March 2000, the veteran testified at a hearing at the RO
before the undersigned, who is the Board member making this
decision and who was designated by the Chairman to conduct
that hearing pursuant to 38 U.S.C.A. § 7107(c) (West Supp.
2000).
FINDINGS OF FACT
1. The veteran has presented no medical evidence of nexus
between a current diagnosis of arthritis/arthralgias of knees
and ankles, secondary to degenerative joint disease
exacerbated by body weight, and any disease or injury during
active military service.
2. The veteran's leg pain disability in service has not been
shown to have become chronic, nor are his current symptoms
continuous with those in service.
3. The claim of entitlement to service connection for a
disability manifested by leg pain is not plausible.
CONCLUSION OF LAW
The claim of entitlement to service connection for a
disability manifested by leg pain is not well grounded.
38 U.S.C.A. § 5107(a) (West 1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Factual Background
Service medical records include a June 1988 outpatient report
noting that the veteran complained of pain in his right leg
from halfway down the tibia to the ankle. This was a sharp
pain, which became worse while running or stretching.
Examination revealed no apparent edema and no discoloration.
Pressure against the bottom of the foot upon extensor muscles
caused pain and pushing on the Achilles tendon evinced
tenderness. The assessment was Achilles tendinitis.
In July 1988, the veteran had been complaining of right shin
splints for two weeks, stating that he had had these for a
long while. The right shin revealed pain to palpation, but
no swelling, discoloration, or deformity. The assessment was
shin splints. Several days later he was found to have a lump
on the medial side of his right shin. The assessment
continued to be shin splints.
Service outpatient records in October 1990 noted complaints
of intermittent bilateral leg weakness and numbness
associated with running. The veteran stated that his legs
became very heavy with repetitive use and occasionally
collapsed. There was no diagnosis, but the veteran was given
profile for one week. A request for consultation to family
practice, also in October 1990, which referred to the
complaints of intermittent leg weakness, resulted in an
impression of probable non-pathologic basis for left leg
weakness.
A consultation request that same month to Keesler Air Force
Base for electromyography (EMG) noted complaints of numbness
and weakness to the left leg from the mid-thigh to the toes,
which usually occurred when walking or running. It was
requested that the consultation rule out motor/sensory
deficit to the bilateral legs. A neurology examination in
response to this request found no evidence of myasthenia
gravis, but pointed out that myopathy should be ruled out.
An outpatient clinic examination in November 1990 revealed no
exterior signs of pathology. The assessment was
musculoskeletal problems. EMG and nerve conduction studies
performed in December 1990 at Keesler were both reported as
normal. The impression was mild fibromyalgia, with no
evidence of myopathy.
Outpatient Records from Sharp Family Clinic in May 1998 and
August 1998 show complaints of leg swelling and bilateral
ankle edema. Although a good portion of these records is
illegible, the assessment included stable hypertension and
morbid obesity.
In October 1998, a VA orthopedic examination report disclosed
a medical history by the veteran of problems with his legs
associated with strenuous physical activity during military
service. He had apparently had a prior workup as to his
lower extremities without any definite abnormalities noted,
as far as he knew. He was medically discharged from service
because of weight problems. Currently, he continued to have
an aching pain in his knees and ankles increased by weight
bearing. He described swelling of both lower extremities for
which he was taking medication. Physical examination
revealed that the veteran weighed 414 pounds. He walked
without a definite limp, but with a waddling gait. He had
mild genu varus of both knees. There was some limitation of
flexion of both knees which the examiner believed was due to
the size of his legs. The examiner was unable to appreciate
any definite effusion of the knees, but did find tenderness
to palpation over the area of the medial joint line
bilaterally. There was no instability of either knee. The
lower extremities, including the ankles, revealed some
swelling and also evidence of stasis dermatitis. Range of
motion studies of both ankles did not elicit pain. Ankle
tenderness was not found. The veteran was able to squat and
arise again with audible crepitus noted in both knees. VA x-
ray examination of the veteran's ankles showed no gross
osseous or joint or soft-tissue abnormalities. X-rays
of his knees showed linear calcific density adjacent to the
right distal femur on the medial aspect, but no other
significant abnormalities. The impression was
arthritis/arthralgias of both knees and ankles, secondary to
degenerative joint disease exacerbated by massive body
weight.
In March 2000, the veteran testified at a hearing at the RO
before the undersigned Member of the Board. He stated that
he was then receiving Social Security disability income for
hypertension and obesity and thought that he had submitted
those records to the RO. At the time of the hearing, he was
not working, but was enrolled in a VA vocational
rehabilitation training program and attending school five
days a week. He testified that his legs had been painful in
service due to strenuous physical training. While he had
never been hospitalized for this problem, he had reported to
clinics and had been put on profile. He had had painful shin
splints at Fort Polk for which he had been sent twice to
Kessler Air Force Base for examination, but nothing
conclusive had been found. He stated that he was discharged
from the service in December 1991, but had not sought
treatment until October 1998. He continued to have pains in
his legs every day and was occasionally awakened at night
with muscle spasms. He had not worked since March 1998.
II. Legal Analysis
Service connection may be granted for diseases or injuries
incurred or aggravated while in active service. 38 U.S.C.A.
§§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999). The
initial question which must be answered is whether the
veteran has presented evidence sufficient to justify a belief
by a fair and impartial individual that the claim is well
grounded. 38 U.S.C.A. § 5107(a) (West 1991). To be well
grounded, a claim must be "plausible;" that is, it must be
one which is meritorious on its own or capable of
substantiation. Such a claim need not be conclusive, but
only possible to satisfy the initial burden of § 5107(a).
Epps v. Gober, 126 F. 3d 1464 (1997), adopting the definition
in Epps v. Brown, 9 Vet. App. 341, 344 (1996). A claim which
is not well grounded precludes the Board from reaching the
merits of a claim. Boeck v. Brown, 6 Vet. App. 14, 17
(1993).
To establish that a claim for service connection is well
grounded, a veteran must present medical evidence of a
current disability; medical evidence, or, in certain
circumstances, lay evidence, of in-service incurrence or
aggravation of a disease or injury; and medical evidence of a
nexus or link between the claimed in-service disease or
injury and the present disease or injury. Epps v. Gober, 126
F.3d 1464 (1997); Caluza v. Brown, 7 Vet. App. 498, 506
(1995).
Alternatively, a claim may be well grounded based on
application of the rule for chronicity and continuity of
symptomatology, set forth in 38 C.F.R. § 3.303(b) (1999).
Savage v. Gober, 10 Vet. App. 489, 495-98 (1997). The
chronicity provision applies where there is evidence,
regardless of its date, which shows that a veteran had a
chronic condition in service or during an applicable
presumption period and still has that condition. Such
evidence must be medical unless it relates to a condition as
to which, under case law, lay observation is competent. If
the chronicity provision is not applicable, a claim may still
be well grounded or reopened on the basis of § 3.303(b) if
the condition is observed during service or any applicable
presumption period, if continuity of symptomatology is
demonstrated thereafter, and if competent evidence relates
the present condition to that symptomatology. Id.
Recent medical evidence indicates that the veteran has a
current disability relative to his bilateral legs,
specifically, as found on latest examination,
arthritis/arthralgias of both knees and ankles, secondary to
degenerative joint disease exacerbated by body weight. He
thus meets the first prong of the well-grounded criteria,
evidence of a current disability. During military service,
he was given several apparently unrelated diagnoses --
Achilles tendinitis, shin splints, and fibromyalgia. Since
the evidence clearly shows disability due to bilateral leg
and foot problems during service, he meets the second prong
of the well-grounded criteria.
On the other hand, the nexus element has not been met. No
physician or other medical professional has related his
currently diagnosed disability to any of the several
conditions experienced during service. Further, none of the
conditions found during service have been characterized as
chronic. Although the veteran claims that his present
symptoms are the same as those he had in service, he has not
submitted competent medical evidence showing continuous
symptomatology. In fact, the sole evidentiary basis for the
asserted continuous symptomatology is the sworn testimony of
the veteran himself. There is no medical evidence of
complaints of or treatment for leg pain from discharge until
1998, and the veteran has said that he did not seek treatment
during that time. The pain and other symptoms experienced
during service were attributed, as best as could be
determined by military physicians, to conditions that bear no
ascertainable relationship to his presently-diagnosed
arthritis exacerbated by his weight. See McManaway v. West,
13 Vet. App. 60, 66 (1999). There is likewise no medical
opinion associating his current leg diagnosis with the
purported continuity of symptomatology. Cf. Savage, 10 Vet.
App. at 497.
Accordingly, this claim is not well grounded and must be
denied.
ORDER
Service connection for a disability manifested by leg pain is
denied.
REMAND
The Board has reviewed the issue of an increased rating for
hypertension, noting that, because the claim involves the
veteran's dissatisfaction with the initial rating assigned
following a grant of service connection, any decision must
consider the possibility of staged ratings under Fenderson v.
West, 12 Vet. App. 119 (1999). For this and other reasons,
the issue must be remanded for further development.
VA regulations pertaining to the schedule of ratings for the
cardiovascular system were changed, effective January 1998.
38 C.F.R. § 4.104 (1999). Since the veteran filed his
initial claim in September 1998, he must be evaluated under
the new diagnostic criteria, specifically, Diagnostic Code
7101. Note 1 appended to this code requires that
hypertension or isolated systolic hypertension must be
confirmed by readings taken two or more times on at least
three different days. Although the veteran testified at his
hearing that he had had a three-day blood pressure evaluation
at a VA facility in February 2000, the Board is unable to
locate any record of this in the claims file. In fact, the
claims file does not contain any outpatient clinical records
pertaining to the veteran whatsoever, other than a list of
his current medications which he brought to his hearing and
for which he waived RO consideration. This evidence must be
obtained and associated with the claims file.
Additionally, the veteran testified that he was receiving
Social Security Disability Income for hypertension and
obesity and that he thought he had submitted these records.
These also are not in the claims file.
Because this issue involves a Fenderson issue and the veteran
contends that his medication has recently been changed, the
RO is specifically requested to search for a list of
medications prescribed when he first began VA treatment for
hypertension. Moreover, since the veteran contends that his
condition has become worse, warranting a recent change in
medication, he should be afforded another three-day
evaluation for hypertension.
Therefore, in order to give the veteran every consideration
with respect to the present appeal, further development of
the case is required. Accordingly, this case is REMANDED for
the following actions:
1. Ask the veteran whether he has been
treated at any other VA facilities for
his hypertension and, if so, obtain these
records from September 1998 to the
present, if available.
2. Secure and associate with the claims
file all VA outpatient treatment records
dating from September 1998 to the
present, to include specifically, a
three-day blood pressure evaluation,
reportedly in February 2000, and a list
of medications from September 1998
through February 2000.
3. Contact the Social Security
Administration and request copies of any
decision awarding the veteran Social
Security Disability Income and the
complete records upon which they based a
determination of disability. Any
subsequent decision and supporting
medical records should also be requested.
All attempts to secure these records
should be documented in the claims file.
4. Schedule the veteran for another VA
three-day evaluation for hypertension to
assess the current severity and stability
of his hypertension. Associate these
records with the veteran's claims file.
5. After completing the development, the
RO must review the claims folder to
ensure that it includes all evidence
requested, or if any is unavailable, a
record of the attempts to obtain it.
Thereafter, the RO should adjudicate the veteran's claim for
increased disability rating for hypertension on appeal from
the initial grant. If any benefit sought on appeal is
denied, provide the veteran and his representative a
supplemental statement of the case and accord them the
appropriate period to respond.
The purpose of this REMAND is to obtain clarifying medical
information. The Board does not intimate any opinion as to
the merits of this case at this time. The veteran has the
right to submit additional evidence and argument on the
matter or matters the Board has remanded to the regional
office. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
J. SHERMAN ROBERTS
Member, Board of Veterans' Appeals